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REPORT No. 107/11
PETITIONS 1105-04 – MOISÉS SIMÓN LIMACO HUAYASCACHI
1201-04 – NÉSTOR ANDRÉS LUYO PÉREZ
1216-04 – MARIO MERWAN CHIRA ALVARADO
ADMISSIBILITY
PERU
July22, 2011
I.SUMMARY
1.This report concerns three petitions lodged on behalf of Moisés Simón Limaco Huayascachi (P 1105-04),[1] Néstor Andrés Luyo Pérez (P 1201-04),[2] and Mario Merwan Chira Alvarado (P 1216-04)[3] [hereinafter also "the alleged victims"], which allege the violation on the part of the Republic of Peru (hereinafter also "Peru," "the State," or "the Peruvian State") of rights enshrined in the American Convention on Human Rights (hereinafter also "the American Convention" or "the Convention"). The petitions indicate that the alleged victims were arrested, prosecuted, and convicted for the crime of high treason between 1993 and 1994, in application of decree laws that were adopted beginning in May 1992. They assert that those decree laws, as well as the criminal proceedings stemming from them, run contrary to a series of provisions of the American Convention. The petitions also contended that the alleged victims were tortured, isolated for long periods, and subjected to inhumane detention conditions. The petitioners indicated that after being convicted in the military justice system, the alleged victims had to undergo new trials in the ordinary courts. They stated that those trials were conducted in accordance with a legislative framework on terrorism adopted as of January 2003, which they contended was also incompatible with the American Convention.
2.The State maintained that the initial allegations regarding the proceedings that took place in the 1990s have changed substantially in view of the adoption, at the beginning of 2003, of a new legislative framework on terrorism. It indicated that this new framework and the criminal trials stemming from it conform to the rights protected in the American Convention and the Political Constitution of Peru. Finally, the State held that the petitioners' allegations do not tend to establish violations of provisions of the Convention, and asked the IACHR to declare the complaints inadmissible pursuant to Article 47(b) of the aforementioned international instrument.
3.After examining the parties' position in light of the admissibility requirements established in Articles 46 and 47 of the Convention, the Commission concluded that it is competent to examine the three petitions, and that they are admissible due to the alleged violation of the rights enshrined in Articles 5, 7, 9, 8, and 25 of the American Convention, in conjunction with Articles 1(1) and 2 of the Convention, and in Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture. The IACHR also decided to join the three petitions and process them together in the merits phase, under Case No. 12.822. The Commission decided to give notice of this Admissibility Report to the petitioners, make it public, and include it in its Annual Report.
II.PROCESSING BY THE COMMISSION
4.Petition 1105-04 was received on October 20, 2004, and the petitioners submitted additional information on January 26, 2005; June 3, 2008; and August 11 and September 8, 2009. The pertinent parts of that documentation were forwarded to the State on March 24, 2010, and the State was given a two-month period to respond. On June 1, 2010, the State submitted its response, and on December 7 it sent an additional communication. The petitioners, in turn, submitted an additional brief on September 10, 2010 and June 20, 2011.
5.Petition 1201-04 was received on November 9, 2004, and the petitioner sent additional information on December 19, 2005, and January 3, 2006. The pertinent parts of this documentation were forwarded to the State on August 26, 2008, and the State was given a two-month period in which to respond. On January 22, 2009, the State submitted its response, and on January 29 of the same year it sent in the respective annexes. The petitioner submitted additional information on April 30 and August 14, 2009. The State, in turn, sent briefs on June 15, November 2, and December 22, 2009.
6. Petition 1216-04 was received on November 10, 2004, and the petitioners submitted additional information on May 5, 2006. The pertinent parts of this documentation were forwarded to the State on December 10, 2008, and the State was given a two-month period to respond. On March 12, 2009, the State submitted its response, and on March 30 of that year it sent the respective annexes. The petitioners submitted additional briefs on June 2, 2009, and on January 4 and 25, 2010, February 1st and March 28, 2011. The State, in turn, submitted communications on August 26 and November 2, 2009, and January 4, 2011.
III.POSITIONS OF THE PARTIES
Preliminary considerations
7.In the complaints considered in this report, the State and the petitioners described an initial series of criminal proceedings that took place throughout the decade of the 1990s, and a second series that began in 2003. The first proceedings were based on decree-laws on terrorism that were enacted during the administration of former President Alberto Fujimori. In January 2003, the PeruvianState adopted a new legislative framework that voided a series of trials for the crimes of terrorism and high treason. Before summarizing the position of the parties, the IACHR deems it necessary to refer to the two legal frameworks within which the facts presented by the parties are inscribed.
Antiterrorist legislation in force from May 1992 to January 2003
8.Decree Law No. 25475, dealing with different forms of the crime of terrorism, was enacted in May 1992. In August of that year, Decree Law No. 25659 was enacted, criminalizing the offense of high treason and giving the military justice system jurisdiction over the prosecution of that crime. Those decrees, along with decrees Nos.25708, 25744, 25880, and other complementary provisions, equipped the Peruvian legal system with exceptional procedures for investigating, examining, and prosecuting individuals accused of terrorism or high treason.
9.The decrees that made up what was known as the “antiterrorist legislation” had the stated purpose of reining in the escalation of targeted killings against officers of the judiciary, elected officials, and members of the security forces, as well as of disappearances, bombings, kidnappings and other indiscriminate acts of violence against the civilian population in different regions of Peru, attributed to outlawed insurgent groups.
10.Among other changes, these decrees allowed the holding of suspects incommunicado for specified lengths of time,[4] holding closed hearings, solitary confinement during the first year of prison terms,[5] and summary deadlines for presenting charges and issuing judgments in the case of the crime of high treason.[6] In addition, these decrees denied suspects the assistance of a legal representative prior to their first statement to an agent of the Public Prosecution Service[7] and restricted the attorney’s participation in the criminal proceedings, disallowed the recusal of judges or other judicial officers,[8] established concealed identities for judges and prosecutors (“faceless courts”),[9] prevented the summoning, as witnesses, of state agents who had participated in preparing the police arrest report.[10]
11.As for their provisions of material law, these decrees allowed for the possibility of applying more than one criminal offense to actions of a similar or identical nature; they did not differentiate between different levels of mens rea;[11] and they only indicated minimum prison terms, without setting maximum penalties.[12]
12.On May 12, 1992, the Executive Branch of Government passed Decree-Law25499, also called the Repentance Law, which regulated the reduction, exemption, remission or mitigation of imprisonment sentences for persons charged or convicted for the crime of terrorism who provided information leading to the capture of chiefs, heads, leaders or principal members of terrorist organizations.[13] By means of Supreme Decree No. 015-93-JUS of May 8, 1993, the Executive Branch adopted the Regulations for the Repentance Law, which provided, among other measures, the secrecy or change of identity for the repentant persons making the statement.[14] The Repentance Law expired on October 31, 1994.[15]
Antiterrorist legislation in force as of January 2003
13.On January 3, 2003, a series of provisions contained in the terrorism decree-laws enacted during the Fujimori administration were ruled unconstitutional by the Constitutional Court.[16] That decision ruled Decree Law 25659 unconstitutional and ordered accusations for the crime of high treason as defined therein to be tried as terrorism, as provided for in Decree Law 25475. In addition, it annulled the provisions that prevented the recusal of judges and the subpoena of officers involved in the police arrest report as witnesses and the provisions that allowed civilians to be tried by military courts. At the same time, absolute incommunicado detention and solitary confinement during the first year of prison terms were also ruled unconstitutional.
14.With reference to the crime of terrorism, the Constitutional Court upheld the legality of Article 2 of Decree Law No. 25475, but ruled that it would apply solely to willful acts; it also established interpretative guidelines to define the scope of the offense.
15.With regard to statements, arrest warrants, technical and expert opinions given before faceless judges, the Constitutional Court ruled that they were not automatically tainted and that the regular civilian judges hearing the new charges would have to verify their worth as evidence, conscientiously and in conjunction with other substantiating elements as set down in regular criminal procedural law.[17]
16.Between January and February 2003, the Executive Branch[18] issued Legislative Decrees Nos. 921, 922, 923, 924, 925, 926, and 927,[19]with the aim of bringing the country’s laws into line with the Constitutional Court’s judgment of January 3, 2003. In general terms, those decrees ordered the voiding of all judgments and trials conducted before the military courts or faceless judicial officers, together with the referral of all such proceedings to the National Terrorism Chamber, further named National Criminal Chamber, which was created within the Supreme Court of Justice and charged with distributing the new trials to the Specialized Criminal Courts. The new antiterrorist legislation also provided for partially open hearings during oral proceedings[20] and prohibited the imposition of harsher sentences than those that had been handed down in the voided trials.[21]
17.With reference to steps taken during criminal investigations and examination proceedings before faceless civilian or military judicial officers, Article 8 of Legislative Decree No. 922 upheld the validity of examination proceeding commencement deeds, police statements given in the presence of a representative of the Public Prosecution Service, technical reports, search records, statements given to the National Police, and statements made by persons who applied to the benefits of Repentance Law (“arrepentidos”). Finally, Article 3 of that Legislative Decree ruled that the voiding of proceedings held by faceless judges would not trigger automatic release from prison, which could take place only if the Public Prosecution Service declined to press charges or if the judiciary refused to commence examination proceedings.
A.Petitioners
1.Common claims
18.The petitions dealt with in this report claim that the alleged victims were arrested between 1993 and 1994 by members of the Peruvian National Police, while not in flagranti delicto and without warrants for their arrest. They maintained that the alleged victims were prosecuted and convicted of the crime of treason against the fatherland, with the examination stage, trial, and sentencing governed by the “antiterrorist legislation” that came into force after May 1992.
19.The petitioners held that the decrees making up that legislation are incompatible with the Constitution of 1979, in force at the time of their enactment, and the Constitution of 1993, as well as with the international human rights treaties ratified by Peru. They also stated that by having been enacted under a de facto regime, the 1992 decree laws were irretrievably defective.
20.The petitions claim that the alleged victims were tried before the military justice system by judicial officials whose identities were kept secret. According to the allegations, they were forced to sign blank pages or confessions after being tortured by members of the National Anti-Terrorism Directorate (DINCOTE as in its Spanish acronym), and they were unable to refute evidence brought against them or to meet in private with defense counsel. It is also claimed that the charges brought by the Public Prosecution Service were based on fabricated or planted evidence and accusations made by “arrepentidos” or other persons under coercion, and that the accused were denied the opportunity of cross-examining the individuals who provided that information.
21.With reference to their personal liberty, the petitions claim that the alleged victims were detained without being informed of the charges against them, and that they were not brought before a competent authority to exercise judicial oversight over their arrests.
22.Regarding their detention conditions, the alleged victims were reportedly kept in isolation for periods of more than 23 hours a day; they were given no socio-pedagogical activities to foster their rehabilitation; they were transferred to locations far away from their families; in some cases they were housed in prisons with extremely low temperatures and precarious detention conditions, such as Yanamayo-Puno and Challapalca-Tacna, and that their right to receive visits was restricted.
23.The three petitions claim that the trials before the military courts were voided by the National Terrorism Chamber in and after February 2003, under the judgment of the Constitutional Court of January 3 of that year and Legislative Decrees Nos. 921 to 927. The alleged victims were convicted for the crime of terrorism as provided for in Decree Law No. 25475 by courts of the ordinary jurisdiction, and the sentence imposed was upheld on appeal in each and every instance.
24.In general terms, the petitioners claimed that the new antiterrorist legislation was enacted after the commission of the offenses with which the alleged victims were charged, and they hold that the use of those laws in their cases violates the principle of freedom from ex post facto criminal laws. They asserted that evidence produced before the faceless military courts was upheld in the new trials before the regular justice system. They claimed that the creation of the National Terrorism Chamber, further named National Criminal Chamber, and its actions in these cases, following the alleged incidents, were in breach of the right to be judged by a court pre-established by law. They contended that the bringing of a second trial for allegations already ruled on during the 1990s was in breach of the principle of double jeopardy.
25.The petitioners claimed that following the voiding of their military convictions, the alleged victims were held in custody for several days or months, in the absence of final convictions and of procedural grounds that would have justified their preventive custody. They held that this undermined their right to the presumption of innocence and to personal liberty. They claimed that although the offense of treason against the fatherland, for which the alleged victims were originally convicted, was stuck off the Peruvian Criminal Law, the offense of terrorism as provided for in Article 2 of Decree Law 25475, as well as the offenses of collaboration and affiliation to terrorist groups, ruled under Articles 4 and 5 of the same decree law, remain ambiguous and imprecise, in spite of the parameters for interpretation set by the Constitutional Court in its judgment of January 3, 2003.[22]
26.The petitioners indicated that through Law 29423 of October 2009, the Peruvian Congress abolished Legislative Decree 927 which regulated the criminal law enforcement in mattes of terrorism. They stated that with the abolition of the said legislative decree, the benefits of reduction of prison sentence through study and work, partial liberty and conditional parole became inapplicable to persons convicted of terrorism. According to the petitioners, the retroactive application of Law 29423 against them involves a breach of the rights protected in the American Convention.
2.Specific allegations
Moisés Simón Limaco Huayascachi (P 1105-04)
27.The petitioners alleged that Moisés Simón Limaco was arrested in the city of Lima, without a warrant, by members of DINCOTE on June 17, 1994. They stated that he was taken to facilities of the Special Intelligence Group of the Anti-Terrorism Division (GEIN-DIVICOTE), where he allegedly remained incommunicado for 30 days before being transferred to the DINCOTE jail. Later, he was reportedly transferred to facilities of the Anti-Terrorism Police (DELTAS), where it is indicated that he remained incommunicado for another 60 days, in a place that was unhealthy and overcrowded. The petitioners maintained that after a summary trial heard by military judges, Mr. Limaco Huayascachi was sentenced to life imprisonment for the crime of high treason.
28.According to the allegations, in October 1994 the alleged victim was incarceratedat the Miguel Castro Castro Maximum Security Prison, then was transferred to the Yanamayo-Puno Prison on January 17, 1996. On November 30, 2003, he was taken to the Challapalca-Tacna Prison, thentransferred to the Ancón Prison (Piedras Gordas) on December 17, 2004, then back to the Miguel Castro Castro Prison, where he has been incarcerated since April 2, 2009. The petitionersclaim that he came down with asthma, tuberculosis, ulcers, and chronic lumbago due to the inhumane detention conditions at the aforementioned prisons. They indicate that doctors attached to the National Prison Institute (INPE) recommended specialized tests, which were never performed. The petitioners state that after those recommendations were made, Mr. Limaco was transferred to the Challapalca Prison, located at an altitude of more than 4,000 meters above sea level, where he remained from November 2003 to December 2004, in extreme conditions of detention.
29.The petitioners stated that since the beginning of 2005, Mr. Limaco Huayascachi had sought specialized medical care and had filed a habeas corpus action on February 25 of that year. They indicated that on November 27, 2007, the Constitutional Court, as the court of last resort, declared the habeas corpus petition to be inadmissible, on grounds that the plaintiff had received timely medical care. According to the information submitted, it was not until June 8, 2008, that a Medical Board at the Piedras Gordas Prison authorized Mr. Limaco's transfer to a hospital for a tomography, which showed a hypodense, cyst-like formation in a lobe of his liver. The petitioners attached a series of complaints directed toward the prison authorities, seeking specialized medical attention for Mr. Limaco Huayascachi. They contended that the expenses, with tests and medical interventions, were covered by him and his sister, Mrs. Doris Limaco.